Date: 20040909
Docket: IMM-4505-03
Citation: 2004 FC 1224
BETWEEN:
JAVARIA MASOOD
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX, J.
BACKGROUND AND FACTS
[1] This judicial review application by Javaria Masood, a citizen of Pakistan (the applicant) challenges the May 13, 2003 decision of the Refugee Protection Division, (the tribunal or RPD), refusing her application to reopen her claim for refugee protection, which had been declared abandoned by the RPD on February 28, 2003, because neither the applicant nor her representative appeared at the February 26, 2003 hearing scheduled to provide an opportunity to explain why her Personal Information Form (PIF) had not been filed on the due date of November 29, 2003.
[2] Her need for protection is based on her claim she is a victim of serious spousal abuse by her husband and that her life is threatened from him if she returns to Pakistan.
[3] Section 168 of the Immigration and Refugee Protection Act (IRPA) reads:
| 168. (1) A Division may determine that a proceeding before it has been abandoned if the Division is of the opinion that the applicant is in default in the proceedings, including by failing to appear for a hearing, to provide information required by the Division or to communicate with the Division on being requested to do so. (2) A Division may refuse to allow an applicant to withdraw from a proceeding if it is of the opinion that the withdrawal would be an abuse of process under its rules. (Emphasis mine) |
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168. (1) Chacune des sections peut prononcer le désistement dans l'affaire don't elle est saisie si elle estime que l'intéressé omet de poursuivre l'affaire, notamment par défaut de comparution, de fournir les renseignements qu'elle peut requérir ou de donner suite à ses demandes de communication. (2) Chacune des sections peut refuser le retrait de l'affaire don't elle est saisie si elle constate qu'il y a abus de procédure, au sens des règles, de la part de l'intéressé. (Je souligne) |
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[4] Sections 55 and 58 of the Refugee Protection Division Rules (the Rules) in part read:
| 55. (1) A claimant or the Minister may make an application to the Division to reopen a claim for refugee protection that has been decided or abandoned.
(4) The Division must allow the application if it is established that there was a failure to observe a principle of natural justice.
58. (1) A claim may be declared abandoned,w ithout giving the claimant an opportunity to explain why the claim should not be declared abandoned, if
(a) the Division has not received the claimant's contact information and their Personal Information Form within 28 days after the claimant received the form; and
(b) the Minister and the claimant's counsel, if any, do not have the claimant's contact information.
Opportunity to explain
(2) In every other case, the Division must give the claimant an opportunity to explain why the claim should not be declared abandoned. The Division must give this opportunity.
(a) immediately, if the claimant is present at the hearing and the Division considers that it is fair to do so; or
(b) in any other case, by way of a special hearing after notifying the claimant in writing.
Factors to consider
(3) The Division must consider, in deciding if the claim should be declared abandoned, the explanations given by the claimant at the hearing and any other relevant information, including the fact that the claimant is ready to start or continue the proceedings.
Decision to start or continue the proceedings
(4) If the Division decides not to declare the claim abandoned, it must start or continue the proceedings without delay. (Emphasis mine) |
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55(1) Le demandeur d'asile ou le ministre peut demander à la Section de rouvrir toute demande d'asile qui a fait l'objet d'une décision ou d'un désistement.
(4) La Section accueille la demande sur preuve du manquement à un principe de justice naturelle.
58. (1) La Section peut prononcer le désistement d'une demande d'asile sans donner au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcée si, à la fois:
a) elle n'a reçu ni les coordonnées, ni le formulaire sur les renseignements personnels du demandeur d'asile dans les vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
Possibilité de s'expliquer
(2) Dans tout autre cas, la Section donne au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne devrait pas être prononcé. Elle lui donne cette possibilité :
a) sur-le-champ, dans le cas où il est présent à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une audience spéciale dont la Section l'a avisé par écrit.
Éléments à considérer
(3) Pour décider si elle prononce le désistement, la Section prend en considération les explications données par le demandeur d'asile à l'audience et tout autre élément pertinent, notamment le fait que le demandeur d'asile est prêt à commencer ou à poursuivre l'affaire.
Poursuite de l'affaire
(4) Si la Section décide de ne pas prononcer le désistement, elle commence ou poursuit l'affaire sans délai. |
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[5] The material part of the tribunal's decision reads:
Whereas the applicant filed a change of address and a notice of counsel naming M. Gabriel Bazin on March 7, 2003.
Whereas the applicant, through her counsel, M. Bazin, filed an application to reopen the claim on March 19, 2003;
Whereas the RPD informed counsel in writing on March 25, 2003 that his application would not be considered because it was not filed in conformity to Rule 28 of the RPD rules;
Whereas through intervention of new counsel, the applicant filed a second motion to reopen her claim alleging the former counsel's incompetence;
Whereas the RPD has limited powers in the reopening of the claim. According to article 55(4) of the Rules, "The Division must allow the application if it is established that there was a failure to observe a principle of natural justice."
Whereas the applicant was aware of her obligations with respect to her refugee claim;
Whereas the applicant was aware that her counsel was not fulfilling these obligations on her behalf. She called the RPD to obtain a copy of her PIF which was to be filed by counsel and she learned that said PIF had not been filed.
Whereas the applicant consulted the same counsel and retained his services to file an application to reopen the claim on her behalf.
According to Mathon v. MEI [(1988), 28 FTR 217 at 235)], a revieweable breach of fundamental justice has occurred when through no fault of the applicant the effect of counsel's misconduct is to completely deny the applicant the opportunity of a hearing.
In the case at bar, the applicant was negligent in not seeking legal advice elsewhere once she realized that M. Bazin had not filed her PIF. Instead, she sought his services once again to file an application to reopen after her claim was declared abandoned.
The applicant is ultimately responsible for fulfilling all obligations related to her claim. In acting the way she did, she denied herself an opportunity of being heard at a hearing.
It is clear in this instance that the principles of natural justice have been respected.
Consequently, the applicant's application to reopen is denied. (Emphasis Mine)
[6] I reproduce below, including the spelling mistakes, pertinent parts of the applicant's affidavit, which was before the tribunal:
1. ...
2. I claimed refugee status at my arrival in Canada and received amongst other documents, a personal information form;
3 In order to help me with the legal procedures, I appointed Mr. Bazin, as my consultant;
4. I thought he was a lawyer and discovered only recently that he is not a lawyer, not being a member of the Quebec Bar;
5. Before any paperwork could be started, he demanded 1000 $ US;
6. ...
7. He asked me to fill out my PIF, which I did and gave to him;
8. He told me that he would take care of filling the PIF;
9. I was waiting to be called for my hearing;
10. In the meantime, I contacted Mr. Bazin and asked he to give me a copy of my documents;
11. He did not want to give me a copy, he did not return my call, did not show up at the appointments;
12. I then went to the refugee board where I found out that my PIF had not been filed;
13. After insisting so many times and confronting Mr. Bazin, he finally gave me an appointment at the refugee board to file my PIF;
14. I don't know what happened to my original PIF;
15. He filed out another PIF with me and had me sign it on the same day;
16. He wrote my story by himself;
17. On March 7, 2003, I met Mr. Bazin at the IRB. We filed my PIF and I gave my address to the IRB. At that time, I did not know my case was closed;
18. I have learned afterwards that I was called for a hearing on February 26th, 2003. I did not receive this hearing document;
19. I realize now that the IRB did not have my address since the PIF was not filed;
20. Mr. Bazin never advised me that a hearing was to take place on that day;
21. When I learned my case was closed, I contacted him again and he told me that he would take care of it;
22. I received a letter from the IRB dated March 25th, in which the refugee protection division writes that Mr. Bazin did not make the appropriate procedures;
23. I called him then. He gave me an appointment but did not show up;
24. Afterwards, I contacted another lawyer to take care of my file. She verified my file at the IRB and the procedure that was done by Mr. Bazin;
25. I have never had another consultant that him;
ANALYSIS
Standard of Review
[7] The parties are in agreement the standard of review on the merits or substance of the tribunal's decision to reopen an abandonment decision is reasonableness simpliciter by analogy to the standard applicable to an RPD decision holding a claim has been abandoned (See Ahamad v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 109 (T.D.) and Mangat v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1301 (T.D.).
[8] The gauge of unreasonableness is that set out by Justice Iacobucci in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc. [1997]1 S.C.R.748 at paragraph 56:
56 I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. [empasis mine]
[9] In Law Society of New Brunswick v. Ryan, [2003]1 S.C.R. 247, Justice Iacobucci applied the reasonableness standard to a statutory appeal from a decision of a professional disciplinary body to disbar a lawyer. He stated his conclusions at paragraph 2 of his decision: "viewed as a whole, the decision of the disciplinary body is supported by tenable reasons which are grounded in the evidentiary record; therefore, it was not an unreasonable decision."
[10] At paragraph 46, he stated that judicial review of administrative action on a standard of reasonableness "involves deferential self-discipline" stating "a court will often be forced to accept that a decision is reasonable even if it is unlikely that the court would have reasoned or decided as the tribunal did." At paragraph 47, he added the standard of reasonableness basically involves asking "after a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?" He added "deference is built into the question since it requires that the reviewing court assess whether a decision is basically supported by the reasoning of the tribunal or decision-maker rather than inviting the court to engage de novo in its own reasoning on the matter" continuing "the question must bear careful relation to the context of the decision...".
[11] At paragraph 49 of his reasons after setting out the test which he formulated in Southam, supra, he stated the Southam test signalled "that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal" and " 'look to see' whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission to those reasons".
[12] At paragaphs 50, 51, 52 and 53 of his reasons, he contrasted the standard of review of unreasonableness with the standard of review for correctness or for patent unreasonableness. I reproduce those paragraphs as a whole:
50 At the outset it is helpful to contrast judicial review according to the standard of reasonableness with the fundamentally different process of reviewing a decision for correctness. When undertaking a correctness review, the court may undertake its own reasoning process to arrive at the result it judges correct. In contrast, when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. Applying the standard of reasonableness gives effect to the legislative intention that a specialized body will have the primary responsibility of deciding the issue according to its own process and for its own reasons. The standard of reasonableness does not imply that a decision maker is merely afforded a "margin of error" around what the court believes is the correct result.
51 There is a further reason that courts testing for unreasonableness must avoid asking the question of whether the decision is correct. Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. For example, when a decision must be taken according to a set of objectives that exist in tension with each other, there may be no particular trade-off that is superior to all others. Even if there could be, notionally, a single best answer, it is not the court's role to seek this out when deciding if the decision was unreasonable.
52 The standard of reasonableness simpliciter is also very different from the more deferential standard of patent unreasonableness. In Southam, supra, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect". Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.
53 A decision may be unreasonable without being patently unreasonable when the defect in the decision is less obvious and might only be discovered after "significant searching or testing" (Southam, supra, at para. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did. [emphasis mine]
[13] He then asked himself how a reviewing Court will know whether a decision is unreasonable given that it may not first inquire into its correctness. The answer, in his view, is that a reviewing Court must look at the reasons given by the tribunal and he concluded as follows in paragraphs 55 and 56:
55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [emphasis mine]
[14] He then applied the standard of reasonableness to the Disciplinary Committee's decision. He first asked what reasons did the Committee give for its decision and then analysed whether the reasons given support the decision and whether they withstand examination. He concluded applying a somewhat probing examination of the Disciplinary Committee's analysis and decision that the reasons given by the Committee, taken as a whole, "were tenable, were grounded in the evidence and supporting of disbarment as the choice of sanction" adding "there is nothing unreasonable about the Discipline Committee's choosing to ban a member from practising law when his conduct involved an egregious departure from the rules of the professional ethics and have the effect of undermining public confidence in basic legal institutions."
[15] Recently, the Supreme Court of Canada revisited the content of the reasonableness standard in Cartaway Resources Corp. (Re), [2004] S.C.C. 26 and in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.C. 23. Those decisions build upon Ryan, supra.
CONCLUSION
[16] According to the Refugee Protection Division Rules, the reopening of a decision previously made by the RPD can only occur if in reaching that decision, there was a failure to observe a principle of natural justice.
[17] Here, the relevant decision is the decision of the RPD to declare the applicant's claim abandoned because neither she or Mr. Bazin appeared at the February 26th hearing scheduled to inquire into the applicant's failure to file her PIF.
[18] Rule 57 of the RPD Rules codifies, absent legislative authorization, the exception to the principle that an administrative tribunal cannot revisit a final decision previously made unless that decision is a nullity. (See Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 which would be the case of one made in breach of the rules of natural justice see Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 (C.A.) and Grewal v. Canada (Minister of Citizenship and Immigration), [1992] 1 F.C. 581 (C.A.)).
[19] In my view, this judicial review application must be allowed because the tribunal's decision not to reopen the abandonment decision was unreasonable.
[20] The tribunal correctly instructed itself on the law when extracting the appropriate principles from Mathon v. Canada (Minister of Employment and Immigration), [1988] 38 Admin. L.R 193 (T.D.).
[21] Mathon, supra, was decided by Justice Pinard. It was a refugee claim case where a lawyer, by error or negligence, had failed to file a motion for the redetermination of a refugee claim with the Minister as instructed.
[22] Justice Pinard endorsed the principle that a litigant who has acted with care should not be required to bear the consequences of a decision which was solely the result of a lawyer's error/negligence.
[23] On the Mathon principle, the tribunal was entitled to examine whether the applicant has acted with care and had not contributed to the abandonment decision.
[24] I add that in the case of Taher v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. 1327 (T.D.), Justice Pinard found a breach of natural justice dealing with a case where a tribunal failed to reopen an abandonment decision based on the non-filing of a PIF occasioned solely by the attorney's fault. He found the applicant was denied natural justice and deprived through no fault of his own, of a fair opportunity to be heard before her claim was declared abandoned.
[25] Counsel for the respondent submitted a number of cases which I considered; some of these were not on point and many others, as will be seen, have no application because of the finding by the tribunal in those cases the refugee claimant was contributorily negligent or exclusively the cause of his own misfortune.
[26] In this case, the tribunal examined whether the applicant could be faulted. It came to that conclusion. It gave only one reason for its finding that the applicant was negligent and that is in not seeking advice elsewhere once she realized that Monsieur Bazin had not filed her PIF. Instead, the tribunal went on to criticize her for seeking his services once again to file an application to reopen after her claim was declared abandoned.
[27] The tribunal made no adverse credibility findings against the applicant nor did it find other reasons to fault the applicant's conduct.
[28] The sole reason for the tribunal finding fault with the applicant is not tenable and cannot support a decision there was no denial of natural justice when Monsieur Bazin failed to file the PIF which she signed, that failure was the basis upon which her claim was deemed abandoned.
[29] The evidence is clear that her contacting Monsieur Bazin again after she had found out her PIF had not been filed had no impact upon the abandonment decision; it was irrelevant to it.
[30] The applicant only found out on February 27, 2004, her PIF had not been filed. The abandonment hearing was held on February 26, 2004, the day before. She was not present at her abandonment hearing because she had no notice of it due to the fact her PIF had not been filed and this uniquely because of Monsieur Bazin's fault which he admitted, albeit indirectly, in his submissions made to the tribunal on his failed reopening motion.
[31] In other words, when she found out about her PIF not having been filed, it was already too late - her claim had been determined abandoned.
[32] I add when she did find out, she acted promptly and pressured Monsieur Bazin to file that PIF on March 7, 2003. Her evidence is that on March 7, 2003 she did not know her claim had been deemed abandoned.
[33] For all of these reasons I find that the applicant's motion to reopen should have been granted by the tribunal. Accordingly, this application for judicial review is allowed and the matter is remitted to a differently constituted tribunal for redetermination in accordance with these reasons.
[34] Counsel for the applicant proposed a question for certification. Given my reasons, the question formulated is not appropriate and I do not propose to certify it.
"François Lemieux"
J U D G E
OTTAWA,ONTARIO
SEPTEMBER 9, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4505-03
STYLE OF CAUSE: JAVARIA MASOOD
v.
MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: July 20, 2004
REASONS FOR Order : The Honourable Mr. Justice Lemieux
APPEARANCES:
Me Stewart Istvanffy FOR APPLICANT
Me Gretchen Timmins FOR RESPONDENT
SOLICITORS OF RECORD:
1070, Bleury Street FOR APPLICANT
Montreal, Quebec
Dept. of Justice FOR RESPONDENT
Montreal, Quebec